“Encryption is inexorably tied to our national interests. It is a safeguard for our personal secrets and economic prosperity. It helps to prevent crime and protect national security." – A report from the bipartisan House Judiciary Committee & House Energy and Commerce Committee

Is Email Metadata Collection Snooping Legal?

In 1967, the U.S. Supreme Court decided in Katz v. United States that an eavesdropping device planted by the FBI in a phone booth, without any authorization by a judge, violated a defendant’s Fourth Amendment rights.

Writing the majority opinion in Katz v. United States, Justice Potter Stewart invoked Brandeis’ 1890 article “The Right to Privacy,” in a footnote and further elaborated on Brandeis’ principle with this passage:

For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

That was a broad statement of Fourth Amendment theory in 1967, but it resonates even more strongly today, despite efforts by later courts to narrow Fourth Amendment protection to whether an individual has a “reasonable expectation of privacy” to things like phone call records.

The technology has changed since since 1967 but the ruling by the Supreme Court still stands: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

Subscribe to these articles by email

Want to receive a once-a-day email message containing all the new articles published here in the previous 24 hours? (You can instantly unsubscribe at any time by clicking on a
link in each email message you receive.) The email service is free.